{
    "case_number": "CAC-ADREU-001905",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "1.The Complainant applied to EURid to register the Domain Name relying on two German registered trade marks, Nos.  301 00 440 and 300 77 153.3, the former being a device mark containing the word Cenaman with a crescent around the C, and the later, the word mark Cenaman (“the Qualifying Marks”).  \r\n\r\n2.The Complainant filed its application on 24 January 2006, prior to the deadline of 5 March 2006 and therefore within the Sunrise period for holders of qualifying marks.  \r\n\r\n3.The validation agent declined the application on the grounds that the evidence submitted was insufficient to establish the qualifying right and on 28 June 2006, the Complainant submitted the Complaint in this matter.",
    "other_legal_proceedings": "",
    "discussion_and_findings": "6. The essential facts are not in dispute and both parties now accept the Complainant was the owner of a Prior Right at the time of the application.  The Respondent says the relevant question is not whether this was the position but whether the Complainant demonstrated it to the validation agent sufficient to discharge its burden of proof.  The Respondent says it did not.  It says the Complainant failed to submit evidence which demonstrated any link between the parties.  \r\n\r\n7. I have reviewed the materials disclosed by the Respondent at the Complainant’s request –namely the documentary evidence submitted with the original application and no link was made between the two entities in the application whatsoever. That is, evidence of a Qualifying Mark registered to the Parent Company was submitted by the Complainant, without more.  Nor are identical addresses given anywhere.  The entities’ names are entirely different.  As far as I can determine there was no information that indicated even a prima facie link and this distinguishes this case from Case 232 (DMC).  \r\n\r\n8. I find the Complainant was an owner rather than a licencee.  The Complainant and the Parent Company are also clearly the same Undertaking, as that term is used in EU law generally and in the Implementation Regulation.  On that basis, under §20.3, the Complainant should have submitted with its application “official documents substantiating that it is the same person as or the legal successor to the person indicated in the documentary evidence as being the holder of the Prior Right.”  I find the Complainant did not satisfy its burden of proof when it made its application.            \r\n\r\n9. As to whether the absence of a prima facie link of itself would have suggested to a validation agent that it needed to make an enquiry; §21.3 of the Sunrise Rules expressly provides that it is within the sole discretion of the validation agent whether it conducts its own investigation.  Further, §21.1 states clearly that it has no obligation to inform the applicant it has not met the requirements.  This is understandable as a matter of policy and I accept the Respondent’s point as to the need for a procedure adapted to the expeditious processing of many thousands of applications.  I find that the Respondent was entitled to reject the application on the basis of the documentary evidence submitted and had no obligation to investigate or make any enquiry.       \r\n\r\n10. The issue then is whether in these circumstances I am able to rectify the situation, relying on the additional evidence submitted in this proceeding.  This is not a simple issue and I have considered the factors below.  \r\n\r\n10.1. §26(2) of the Sunrise Rules provides “the sole object and purpose of an ADR Proceeding against the registry is to verify whether the relevant decision by the Registry conflicts with the Regulations.”  This is derived from Art. 22(11) of the Policy Regulation which provides “in the case of a procedure against the Registry, the ADR panel shall decide whether a decision taken by the Registry conflicts with this Regulation or [the Implementing] Regulation. The ADR Panel shall decide that the decision shall be annulled and may decide in appropriate cases that the domain name in question shall be transferred, revoked or attributed, provided that, where necessary, the general eligibility criteria set out in Art. 4(2)(b) of the [Implementing] Regulation are fulfilled.”   \r\n\r\n10.2. Those eligibility criteria are that the Registry shall “register domain names in the .eu TLD through any accredited .eu Registrar requested by any: (i) undertaking having its registered office, central administration or principal place of business within the Community, or (ii) organization established within the Community…(iii) natural person resident within the Community.” \r\n\r\n10.3. Art 5(b) provides that a public policy shall include “..policy on speculative and abusive registration of domain names including the possibility of registrations of domain names in a phased manner to ensure appropriate temporary opportunities for the holders of prior rights recognized or established by national and\/or Community law.. ”  Arts. 10 and 14 of the Policy Regulation are referred to above.  \r\n\r\n10.4. I note the many authorities cited by the Respondent to the effect that I am limited to deciding whether the Respondent made the right decision at the time based on the evidence before it.  I have reviewed many of them and found that none particularly assist me to determine the meaning of ‘conflicts’ with the Regulations in this context.                   \r\n\r\n11. In a broad sense, to deny the relief sought does conflict with the policy of the Regulations and the intention behind the phased registration periods, namely to protect the holders of registered marks.      It does appear to me that this proceeding is an opportunity to rectify the situation now.  The Complainant does, I am satisfied on the evidence submitted in this proceeding, have a Prior Right and meet the eligibility criteria.  Accepting that it failed to meet its burden at the application stage and that the Respondent made an absolutely correct decision at the time, it seems to me that the appropriate decision is to now rectify the situation.  I note that other panelists have come to a similar conclusion, e.g., Cases 01077 (EURACTIV), 0032 (ESGE), 00396 (CAPRI).          \r\nDecision:",
    "decision": "12. For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that the EURID’s decision be annulled\/the domain name cenaman.eu be registered in the name of the Complainant, easycare Research GmbH.",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2006-09-11 00:00:00",
    "informal_english_translation": "The Complainant is controlled by Heimpflege-Bedarf GmbH, its Parent Company and the registered proprietor of the Qualifying Marks.   The Complainant contended that it and its Parent Company are one undertaking and that the Complainant was not the mere licencee of the Qualifying Marks but by virtue of its power to dispose of them, a true owner of the same.  It also contended that the Prior Right is identical to the Domain Name, the legal relationship between the Registered Proprietor and the Complainant is a matter of German law and in these circumstances, the trade mark certificate in the name of the Parent Company was sufficient evidence of the Prior Right to justify registration.\r\n\r\nThe Respondent contended that the documentary evidence submitted by the Complainant did not demonstrate any link between the Complainant and the Parent Company and the Respondent was only  informed of the link and provided with documentary evidence in this ADR proceeding. Therefore, the Respondent had no choice but to reject the Complainant's application.  According to the procedure in the Policy Regulation, the relevant question was not whether an applicant is the holder or licencee of a Prior Right but whether an applicant has demonstrated this to the validation agent.  \r\n\r\nThe Panel held that in a broad sense, to deny the relief sought conflicts with the policy of the Regulations and the intention behind the phased registration periods, namely to protect the holders of registered marks.  The Complainant, based on the evidence submitted in this proceeding, has a Prior Right and meets the eligibility criteria, although it failed to meet its burden at the application stage and the Respondent made the correct decision at the time.   The proceeding offered an opportunity to rectify the situation.  \r\n\r\nThe Panel therefore directed that the decision of the Registry be annulled and the domain name cenaman.eu be registered in the name of the Complainant, easycare Research GmbH.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}